Offsetting Obligations of a Deceased

(based on Shut Noda B’Yehuda I, Choshen Mishpat 7)


Case: After Leib Segal died, Aharon presented a bill of debt against him for the sum of 10 red coins plus profits. Leib’s inheritors claim that, to the contrary, they heard their father bemoan the difficulties of extracting long overdue payment from Aharon. They also found among their father’s papers two open notes signed by Aharon, and they do not know what specific claims and defenses to make.

Ruling: There are a few halachic doubts to be considered. The S’ma says that if one possesses a mamrani (a note of debt from a specific person without a specific recipient) with the amount left open, the one who possesses it is believed with the claim of any sum he makes. While Leib Segal’s sons cannot make endless claims without knowledge of how much Aharon owed their father, they can claim that since their father complained of Aharon owing him, the amount was at least as much as he "owed" Aharon.

P'ninat Mishpat (702)

Various Rabbis

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One might want to claim that this case is different, in that Leib never told his sons that these open notes were specifically related to Aharon’s debt to him. It is thus possible that if Leib were alive, he would admit that the open promissory note was an amana (a document prepared for possible future use, held by the potential lender). In such a case, we do not give the holder extra reliability based on the concept ofmigo (since I could have claimed …). However, the above logic is not a factor because the reason we do not employ migo is because we do not say migo to extract money (Shach and Ir Shushan, against the S’ma). In this case, Leib’s sons only need the possibility of making claims based on the notes for the purpose of withholding payment from Aharon.
Even if Leib’s sons had not heard their father’s complaints, Aharon might not be able to receive payment based on his contract of debt against Leib. The reason that one who presents a contract of debt can extract payment from the borrower’s inheritors, and we do not consider that the debt had been paid, is that we say that had there been payment, the borrower would have taken back the contract. In this case, Leib might not have cared about leaving the contract in Aharon’s possession because he had open notes from Aharon which could counteract an attempt at a second demand of payment. Any claim that Leib could have made, we make on behalf of his inheritors. There are other cases where we use subjective logic to determine that the presence of the contract in the hands of the lender does not mean the debt was not paid. The Maggid Mishneh (Malveh 14:10) says that a borrower can claim previous payment against a promissory note that is not signed but is written in his hand writing for the following reason. Since the note cannot be used to extract money from those who bought property from the borrower, we say the borrower is not afraid to leave the note because he can always sell his property to get out of paying. It is easier to apply a parallel argument in our case.
We can also argue that the open notes that Aharon gave Leib were done as a receipt for Leib’s payment of debt. This makes sense if, for example, it was written when the parties did not remember how much money had been paid. It is also possible that the notes Leib had were an informal document that some call a shtar pitzuy, which are not unusual.